from the one-way-to-go-about-things dept

We recently wrote about how the school district in Prince George County, Maryland, was looking at adopting a policy whereby the school would claim all copyrights on created works by students and teachers. For obvious reasons, this got many people upset and, in response, it appears that a Maryland politician has tried to block the move. Dave Blevins alerts us to the news that Maryland state House Minority Leader Anthony J. O'Donnell introduced a bill that bars schools from claiming the copyright on students' work. The bill does not however bar them requiring staff to assign copyrights, which is unfortunate. It's good to see more widespread recognition of how copyright is abused, but trying to fix it bit by bit rather than looking at the overall system seems like a mistake.

A pair of pants

I have always likened the current copyright system like a pair of pants. You buy the pants brand new (circa 1790). As you wear them, you notice holes in them, and start to patch them up. Eventually (now) your pants are more patches than pants.

At some point, you have to realize that the pants need to be tossed out and replaced.

Re: Well done

Are we against works for hire now? I don't like how public school teachers and adjunct professors are paid to develop curricula and lesson plans for one year, and then are no longer needed because the schools can take their work. But as much as I dislike it, that is a contractual thing.

Re:

What about the students? They're definitely not work-for-hire. The taxpayers are the ones paying the bills, keeping the schools up and running. Effectively, that should make the teachers' work public domain. Of course, corporate interests would like nothing more than to leech off our educational facilities for as much free money and "intellectual property" as they can grab.

Re: Re:

There are two ways for a work to be a work made for hire: 1) Created by an employee in the scope of his employment (see CCNV v. Reid for a discussion of what constitutes employment and scope); 2) Works that are specially commissioned, pursuant to an express, signed agreement that states that they're works made for hire, and where the type if work falls into one of several rather narrow categories listed in the statute at 17 USC 101. Even with the right contractual language, it won't qualify if it isn't the right sort of work.

Re: A pair of pants

I fully agree with you on that point. Only thing I would add is to say that it is not just the copyright system. I really think the entire US legal system is due for a restart. The system has too many patches.

I look at it kind of like computer code. You start off making a program and as you find bugs you patch them and ratchet up the point numbers. After a while though you have to break down and work on V.2 where you rewrite all your code and clean it up.

Bad School Board

This is just a money grab by the school board. It is actually two separate issues. One is the teachers. There "work" could be considered a work for hire, if thier contract specifically states it is a work for hire. That is part of the law. The students were not hired or contracted, so that part of the "policy" would be shot down as soon as it got to court. Part two is that the students were not hired in any way shape or form. Since the students are not hired and don't have a contract, the school system is not their employer and under federal law have no right to their work. The taxpayer money paying the teachers "should" mean that all of the teachers "work", done on the taxpayer's dime and equipment should be in the public domain or at least school system property anyway at least for public schools and private schools that are taking public taxpayer money. I would love to see how PG county is going to get around the requirements of copyright law on this. The law is specific in that it requires a contractural agreement. All teacher contracts have to be approved by the teachers union first. This means that next the teachers union is going to try to make a money grab for the teachers work, just watch.

Re: Re: A pair of pants

but this is different, the problems with the U.S. system is that the code is intentionally malicious written by spammers intending to use it for nefarious purposes. Dumping the system and working on a new version won't work because you still have the same malicious people simply writing a new version of the same Trojan in secret. What needs to be changed is how laws are written and the fact that more transparency needs to be introduced. Things like secret (international) negotiations (ACTA) need to be banned and the public needs to be more aggressive in overseeing the code writing process and ensuring that we are allowed to view any code for longer lengths of time (per unit code) before it is executed and becomes more difficult to undo.

Bad legislation is like a computer virus, it's much easier to detect and erase it before it is executed than after.

Re: Re: Re: A pair of pants

Re: Re: Re: Re: A pair of pants

and the problem is that bills are like these huge programs with small lines of malicious code hiding amidst the many lines of benign code. But once that code is executed it becomes very difficult to undo and fix the damage it causes. This is why bills need very careful public inspection before execution.

How do you unlearn what you've learned?

The problem with Work for Hire is this: you may be prohibited from taking specific lesson plans (in this case) outlined a specific way and using them in another district and/or publishing them online. But once you've learned the process of lesson plan making, you can't exactly UN-learn that. So what's a teacher to do? Never write another lesson plan for another district ever? How can teachers move around and change jobs under that scenario?

Ditto programming. Yeah, you can't take code and use it somewhere else line by line. But once you figure out how to overcome a specific coding hurdle, you may well face that same hurdle at another employer. You're supposed to...what? Pretend you never solved it for the first guy? Not possible, so you reuse what you've learned, if not specific lines of code. There's not a programmer out there who doesn't do this.

Re: Re: A pair of pants

Re: Work for hire

Bent, I am not against works for hire.

I am against organizations trying to claim ownership of ALL works by an employee when the work is not part of the employer's product line or business.

In an educational setting, this is especially a cause for concern, as traditionally, both educators and students have owned work that they created during the educational process. At a university level, professors are expected to publish and continue their professional development... trying to claim ownership of those works doesn't exactly make someone want to create new works that they won't own.

IMO, a work for hire should always be a specific, commissioned work. For example, "We will pay you to write us a school anthem." Schools should never be allowed to say "we own everything you create." This should include a teacher's individualized lesson plans.

Now the exception should be for specific works created for the school. For example, if a teacher helps develop or revise the syllabus that will be used by all of the teachers for a specific class, that would be owned by the school. If a student creates a module for the school web site, then the school should own that work.

But when an art professor paints a portrait of his wife for her birthday, a computer teacher writes a video game to sell on iTunes, or a music teacher composes a song to play at the local coffee shop, those are individual works and not something created to help the school do its business. I can't see any reasonable merit to the school owning those works.

Re: Re: Re: A pair of pants

The problem is the disproportionate amount of effort required to either stop or abolish bad legislation or get good legislation passed. It takes a lot of public pressure to do so (which requires a lot of public awareness and coordination) while all a corporation has do to introduce bad legislation or stop good legislation is either contribute some money to campaigns, in return for a politician doing what they want, or, more easily, offer a politician a job after they leave office. This requires nearly no effort at all which is why IP laws are as ridiculous as they are (ie: 95+ year copy'right' lengths). When a politician acts self serving what is the public to do to punish them? They get rewards for acting self serving but the punishment is nearly non-existent.

Where your contractual argument goes off the rails is a lack of understanding of MD law regarding teachers. The actual Teacher's Contract that the teacher signs is written by the State Bd of Ed, not the local board. There is a negotiated agreement between the local boards and the local union, but that applies to, and is only enforceable by, the local union. The teacher is a third party beneficiary, and not an actual party to the contract (has your head exploded yet?). It is a byzantine system, and while there could be a provision in there in which the Board would agree to not take the copyright, I have seen most of these agreements, and they don't touch upon copyright at all.

That being said, if the work is created outside of work, or would not be something the teacher would normally be expected to create to do the job, then it will most likely not be a work for hire, policy or no policy.

Lastly, the union could NEVER get the copyright, nor are they interested in it. The unions do not employ the teacher and therefore can't get the copyright.

While I agree, it is an attempted money grab by the Board, it is self-defeating since it prevents there from being any "money" to grab. It is like taxing at 100%. . . no one is going to try to earn any income since it is all taken. Let's keep the focus on the bad actor here, and not try to bring in non-actors such as the union, into the argument.

Its good to see such legislation but one must wonder how we end up like this. Its nice to see the public being more aware of copyright abuses and at least some state senators will be reading up on it in the development of such law. Now if only we could get exposure the topics of being able to share cultural media items and public domain expansion.

How do kids expect to profit intellectually if the school itself claims by eternal copyright their own essays and artwork? It is the whole process of life in that we use what we learn! If you fill up my head with knowledge and then tell me I cant use it without paying individual licensing fees for every use is a scheme that Ponzi would love. If I read one of my old school essays to my kids do they have to pay if they use ideas or quotes off of it also? (Don't laugh, you guys know I write a lot it's a very real scenario.)

The teacher created coursework and curricula are a different matter although one would hope that a teacher could share that with other teachers in other schools. Most teacher contracts are not spcific in that area. Much coursework is based on collaborations from other teachers at seminars and such or even from web sites that teachers share their experience and lesson plans so who really owns it is a complex argument.

Tomxp411 said “Schools should never be allowed to say "we own everything you create." “ (and elaborates well) If the school copyrighted everything by default it just sounds like a land grab 'just because we can' thing. The current, effectively, eternal copyright system completely removes from circulation a copyrighted work forever because it wont be available (to you) until long after you die. If the term were much shorter it would not be as much of a concern and you would be able to pick up where you left off when the term expired.

It has been one of my themes that copyright should be limited to some time span of much less that the average lifespan of the audience. 30 years might be to much. It is important that we be able to use the stories our parents taught us (our culture) or read in school because... thats all we know!